Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November
17, 1997, by and between TELE-COMMUNICATIONS, INC., a Delaware corporation (the
"Company") and TORONTO DOMINION (NEW YORK), INC., a New York corporation
("TD(NY)").
WITNESSETH:
WHEREAS, TCI and TD Securities (USA) Inc. on its own behalf and as
agent for TD(NY) are parties to a letter agreement, dated as of November 17,
1997 (the "Facility"), pursuant to which TCI may direct TD(NY) to acquire shares
of Tele-Communications, Inc. Series A TCI Group Common Stock, par value $1.00
per share ("TCOMA"), and/or shares of Tele-Communications, Inc. Series A TCI
Ventures Group Common Stock, par value $1.00 per share ("TCIVA"), for an
aggregate purchase price of up to $300,000,000 (shares of TCOMA and TCIVA
acquired by TD(NY) or its permitted assignees pursuant to the terms of the
Facility are referred to herein as "Facility Shares");
WHEREAS, TD(NY) and the Company are parties to an ISDA Master
Agreement, dated November 17, 1997 (the "Master Agreement," which term includes
the related schedule and confirmations), pursuant to which TD(NY) and the
Company may establish equity swaps that correspond to the Facility Shares
acquired by TD(NY);
WHEREAS, upon the termination, in whole or in part, of an equity swap
under the Master Agreement, the Company may settle its obligation thereunder by
delivering to TD(NY) shares of TCOMA and/or shares of TCIVA (shares of TCOMA
and TCIVA delivered by TCI in settlement of its obligations upon any termination
of an equity swap under the Master Agreement are referred to herein as
"Settlement Shares");
WHEREAS, the Facility Shares may be deemed to be, and the Settlement
Shares will be, "restricted securities" within the meaning of subparagraph
(a)(3) of Rule 144 under the Securities Act (as defined below), or may otherwise
be subject to the resale limitations of Rule 144; and
WHEREAS, the Company has agreed to file and keep continuously
effective, for the periods and on the terms and conditions set forth herein, a
"shelf" registration statement for the resale of any Facility Shares, to the
extent such shares may be deemed subject to the limitations of Rule 144, and
any Settlement Shares.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Certain Definitions. Capitalized terms used but not defined herein
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shall have the meanings given such terms in the Master Agreement. In addition
to the terms defined in the recitals to this Agreement, the following terms, as
used herein, shall have the following meanings:
Business Day: Any day other than a Saturday, Sunday or other day on
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which banking institutions in Denver, Colorado or New York, New York are
authorized or obligated by law, regulation or executive order to close.
Commission: The Securities and Exchange Commission, or any other
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Federal agency at the time administering the Securities Act and the Exchange
Act.
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
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successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Prospectus: The prospectus included in the Registration Statement as
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of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, as amended, and each
prospectus supplement relating to the offering and sale of any of the
Registrable Shares.
Registrable Shares: The term "Registrable Shares" means (i) all
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Settlement Shares delivered by TCI to a Seller pursuant to a "Net Share
Settlement" under the Master Agreement (including without limitations pursuant
to the "make-whole" provisions thereof), (ii) any Facility Shares acquired by a
Seller from TCI or an affiliate (as that term is defined in Rule 144(a)(3)
under the Securities Act) of TCI and (ii) any Facility Shares that are acquired
by a Seller from a person other than TCI or an affiliate of TCI, but only to the
extent the such Facility Shares are sold by a Seller in connection with a "Cash
Settlement" or a "Net Share Settlement" under the Master Agreement, and any
other shares of capital stock of the Company issued in respect of any shares
referred to in clauses (i), (ii) and (iii) above as a result of stock splits,
stock dividends, reclassification, recapitalizations, mergers, consolidations or
similar events. Following the final settlement of all amounts due to the Seller
by the Company under the Master Agreement, any particular Facility Shares or
Settlement Shares shall cease to be "Registrable Shares" at such time as they
are no longer subject to any of the resale limitations of Rule 144 under the
Securities Act.
Registration Expenses: All expenses incident to the Company's
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performance of or compliance with this Agreement, including, without limitation,
(i) all Commission and National Association of Securities Dealers, Inc.
registration and filing fees, (ii) fees and expenses of compliance with state
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the Seller in connection with any blue sky
qualifications of any of the Registrable Shares), (iii) all printing expenses
and messenger and delivery expenses in connection with the preparation and
distribution of any documents relating to the performance of and
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compliance with this Agreement and (iv) fees and disbursements of counsel for
the Company and all independent certified public accountants (including the
expenses of any "cold comfort" letters prepared by such accountants); provided,
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however, the term "Registration Expenses" shall not include, and the Company
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shall not be responsible for (except to the extent otherwise expressly provided
in the Master Agreement), any underwriting discounts or commissions or transfer
taxes, if any, attributable to the sale of any Registrable Shares.
Registration Statement: The term "Registration Statement" means the
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"shelf" registration statement of the Company on Form S-3 (or, if the Company is
not then eligible for Form S-3, such other form for which the Company then
qualifies) which (i) is filed by the Company with the Commission in accordance
with Section 2(a)(i) below and (ii) permits the secondary resale thereunder of
up to 10,090,000 shares of TCOMA and 5,190,000 shares of TCIVA on a delayed or
continuous basis in accordance with Rule 415 under the Securities Act, or any
successor rule that may be promulgated by the Commission under the Securities
Act, as they each may, from time to time, be in effect. The term "Registration
Statement" shall also include all exhibits and financial statements and
schedules and documents incorporated by reference in such Registration Statement
when it becomes effective under the Securities Act, and in the case of
references to the Registration Statement as of a date subsequent to the
effective date, as amended or supplemented as of such date.
Securities Act: The Securities Act of 1933, as amended, or any
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successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Seller: TD(NY) and any permitted assignee of TD(NY) under this
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Agreement that acquires any Registrable Shares.
2. Shelf Registration.
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(a) The Company shall:
(i) file with the Commission under the Securities Act as
promptly as practicable, but in any event by December 3, 1997, a
Registration Statement providing for resales by the Seller of up to
10,090,000 shares of TCOMA and 5,190,000 shares of TCIVA. The section
of the Prospectus entitled "Plan of Distribution" shall provide that
the Seller may distribute Registrable Shares pursuant to the
Registration Statement and such Prospectus in the manner set forth on
Exhibit A hereto;
(ii) use its best efforts to cause such Registration Statement
to be declared effective by the Commission as promptly as practicable,
but in any event by January 12, 1998; and
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(iii) use its best efforts to keep such Registration Statement
continuously effective under the Securities Act until the later of (x)
the final settlement of all amounts due to the Seller from the Company
under the Master Agreement and (y) the earlier of (A) the sale of all
Registrable Shares owned by the Seller and (B) such time as there are
no longer any Registrable Shares.
(b) The Company shall supplement or amend the Registration Statement
as necessary to comply with the rules, regulations or instructions
applicable to Form S-3 (or, if different, the form used for the
Registration Statement) or by the Securities Act or by any other rules and
regulations thereunder for "shelf" registration, and the Company shall
furnish to the Seller copies of any such supplement or amendment promptly
after its being filed with the Commission.
3. Registration Procedures.
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(a) In connection with the obligations of the Company pursuant to
Section 2 hereof, the Company shall:
(i) prepare and file with the Commission the Registration
Statement and cause the Registration Statement to become effective and
remain continuously effective in accordance with Section 2 hereof;
provided, however, that before filing any Registration Statement or
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Prospectus or any amendments or supplements thereto (other than
documents that would be incorporated therein by reference) the Company
shall afford the Seller an opportunity to review copies of all such
documents proposed to be filed. The Company shall not file the
Registration Statement or related Prospectus or any amendments or
supplements thereto (other than such documents to be incorporated by
reference) if the Seller shall reasonably object on a timely basis,
unless such filing would be necessary to prevent a violation of any
applicable law or regulation;
(ii) notify the Seller (A) of the receipt of any comments from
the Commission on the Registration Statement prior to its becoming
effective, and the Company's responses thereto, (B) when the
Registration Statement becomes effective, (C) when the filing of a
post-effective amendment to the Registration Statement or supplement
to the Prospectus is required, when the same is filed, and in the case
of a post-effective amendment, when the same becomes effective, (D) of
any request by the Commission or any state securities authority for
any amendment of or supplement to the Registration Statement or the
Prospectus relating thereto or for additional information, (E) of the
entry of any stop order suspending the effectiveness of the
Registration Statement or of the initiation of any proceedings for
that purpose, (F) of the happening of any event or the failure of any
event to occur or the discovery of any facts or otherwise that makes
any statement made in the Registration Statement or the Prospectus
relating thereto untrue in any material
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respect or that causes such Registration Statement or Prospectus to
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and (G) of the reasonable determination by the Company
that a post-effective amendment to the Registration Statement would be
appropriate;
(iii) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement or any order directed to any document
incorporated by reference in the related Prospectus at the earliest
possible moment;
(iv) furnish to the Seller a conformed copy of the Registration
Statement as declared effective by the Commission and each post-
effective amendment thereto, and such number of copies of the final
Prospectus and of each supplement thereto (together with documents
incorporated therein by reference) as may reasonably be required to
facilitate the distribution of the Registrable Shares in accordance
with a method of distribution described in the Registration Statement;
(v) cooperate with the Seller to facilitate the timely
preparation and delivery of certificates representing Registrable
Shares to be sold under the Registration Statement and not bearing any
restrictive legends and in such denominations and registered in such
names as the Seller or the underwriters may reasonably request at
least two Business Days prior to the closing of any sale of
Registrable Shares pursuant to the Registration Statement;
(vi) prepare a supplement or post-effective amendment to the
Registration Statement or the Prospectus relating thereto or any
document incorporated therein by reference or file any other required
document whenever necessary upon the occurrence of any circumstance so
that, as thereafter delivered to the purchasers of Registrable Shares,
such Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) if the Seller notifies the Company that it wishes to effect
an underwritten offering of Registrable Shares, (A) the Seller shall
have the right to select the managing underwriters, who shall be
subject to the approval of the Company, which approval shall not be
unreasonably withheld (it being understood that TD Securities (USA)
Inc. is, in any event, reasonably acceptable to the Company for this
purpose) and (B) the Company shall (w) enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings; (x) obtain opinions of counsel to the Company and updates
thereof (which may be in the form of a reliance letter) in form and
substance reasonably
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satisfactory to the managing underwriters and the Seller addressed to
the underwriters and the Seller covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such underwriters and the
Seller (it being agreed that the matters to be covered by such opinion
may be subject to customary qualifications and exceptions); (y) obtain
"cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters and the Seller
from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to
each of the underwriters and, if permitted by applicable accounting
rules and statements, the Seller, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance
with Statement on Auditing Standards No. 72; and (z) ensure that any
underwriting agreement contains indemnification provisions and
procedures no less favorable than those included in Section 5 hereof
(or such other provisions and procedures acceptable to the Seller and
the underwriters) with respect to all parties to be indemnified
pursuant to said section (including, without limitation, the
underwriters and the Seller);
(viii) make reasonably available for inspection by the Seller
and any underwriter, agent or broker-dealer participating in any
disposition of Registrable Shares such information and corporate
documents as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers
of the Company and its "significant subsidiaries" (as that term is
defined in Regulation S-X) to be available to respond to questions
relevant to such due diligence inquiries;
(ix) make generally available to its securityholders earning
statements satisfying the provisions of the last paragraph of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after
the end of any 12-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Registrable Shares are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of the Registration Statement, which
statements shall cover said 12-month periods;
(x) register or qualify the Registrable Shares covered by the
Registration Statement under the securities or blue sky laws of such
jurisdictions in the United
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States as the Seller shall reasonably request (to the extent no
exemption from such registration or qualification is available), and
do any and all other acts and things which may be necessary to enable
the Seller to consummate the disposition in such jurisdictions of
Registrable Shares in accordance with a method of distribution
described in such Registration Statement; provided, however, that the
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Company shall in no event be required to qualify to do business as a
foreign corporation or as a dealer in any jurisdiction where it is not
so qualified, to conform its capitalization or the composition of its
assets at the time to the securities or blue sky laws of such
jurisdiction, to execute or file any general consent to service of
process under the laws of any jurisdiction, to take any action that
would subject it to service of process in suits other than those
arising out of the offer and sale of the Registrable Shares covered by
such Registration Statement, or to subject itself to taxation in any
jurisdiction where it has not theretofore done so;
(xi) cause the Registrable Shares covered by the Registration
Statement to be listed on the principal exchange or exchanges or
qualified for trading on the principal over-the-counter market on
which shares of the same series of common stock of the Company are
then listed or traded upon the sale of Registrable Shares pursuant to
the Registration Statement; and
(xii) otherwise comply with all applicable rules and regulations
of the Commission and use its commercially reasonable efforts to take
such other actions as may be required to permit unrestricted sales of
Registrable Shares under the Registration Statement.
(b) The Company's obligations under this Agreement to the Seller
shall be conditioned upon the Seller's compliance with the following:
(i) the Seller shall cooperate with the Company in connection
with the preparation of the Registration Statement and, for so long as
the Company is obligated to keep the Registration Statement effective,
the Seller will provide to the Company, in writing, for use in the
Registration Statement, all information regarding the Seller and such
other information as may be reasonably required to enable the Company
to prepare the Registration Statement and Prospectus covering the
Registrable Shares and to maintain the currency and effectiveness
thereof;
(ii) the Seller shall permit the Company, any proposed
underwriters, agents or broker-dealers participating in the offering
or other distribution and their respective representatives and agents
to examine such documents and records and shall supply any information
as they may reasonably request in connection with the offering or
other distribution in which the Seller proposes to participate;
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(iii) the Seller shall enter into such agreements with the
Company and any underwriter, broker-dealer or similar securities
industry professional participating in an offering containing
representations, warranties, indemnities and agreements as are in each
case customarily entered into and made by selling stockholders, and
will cause its counsel to give any legal opinions customarily given,
in secondary distributions under similar circumstances;
(iv) during such time as the Seller may be engaged in a
distribution of the Registrable Shares, the Seller will comply with
all applicable laws, including, but not limited to, Regulation M
promulgated by the Commission under the Exchange Act and pursuant
thereto will, among other things: (A) not engage in any stabilization
activity in connection with the securities of the Company in
contravention of such rules; (B) distribute the Registrable Shares
owned by the Seller solely in the manner described in the Registration
Statement; and (C) not bid for or purchase any securities of the
Company or attempt to induce any person to purchase any securities of
the Company other than as permitted under the Exchange Act;
(v) other than in the case of an underwritten public offering,
at least one Business Day prior to any distribution by the Seller of
Registrable Shares, the Seller will advise the Company in writing of
the dates on which the distribution will commence and, to the best
knowledge of the Seller at that time, the date on which the
distribution will terminate, the number and kind of Registrable Shares
to be sold, the terms and the manner of sale (including, to the extent
applicable, the purchase price, the name of any underwriter, agent or
broker-dealer to or through whom such distribution is being made, and
the amount of any selling commissions or other items constituting
compensation to such underwriter, agent or broker-dealer) and the
number and kind of Registrable Shares that will be owned beneficially
by the Seller after giving effect to such sale; and
(vi) on notice from the Company of the happening of any of the
events specified in clauses (C), (D), (E), (F) or (G) of Section
3(a)(ii), then the Seller shall cease offering or distributing the
Registrable Shares until such time as the Company notifies the Seller
that offering and distribution of the Registrable Shares may
recommence.
4. Expenses of Registration.
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The Company shall pay all Registration Expenses and the fees and
disbursements of the Seller's counsel in the preparation of this Agreement, the
Facility, the Master Agreement and the Registration Statement. Except as
otherwise expressly set forth in the Master Agreement, the Seller shall be
responsible for all underwriting discounts, commissions and transfer taxes, if
any, relating to the sale of any Registrable Shares pursuant to the Registration
Statement.
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5. Indemnification. (a) The Company agrees to indemnify and hold
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harmless the Seller, and each person, if any, who controls the Seller within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by the Seller expressly for use
therein; provided, however, that the Company shall not indemnify the Seller or
any person who controls the Seller from any such losses, claims, damages or
liabilities alleged by any person who purchased Registrable Shares from the
Seller if the untrue statement, omission or allegation thereof upon which such
losses, claims, damages or liabilities are based was made in: (i) any
preliminary prospectus, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Seller to such person at
or prior to the written confirmation of the sale of Registrable Shares to such
person, and if the Prospectus (as so amended or supplemented) corrected the
untrue statement or omission giving rise to such loss, claim, damage or
liability; (ii) any Prospectus used by the Seller or any person who controls the
Seller, after such time as the Company advised the Seller that the filing of a
post-effective amendment or supplement thereto was required, except the
Prospectus as so amended or supplemented; or (iii) any Prospectus used after
such time as the obligation of the Company to keep the same current and
effective has expired. This indemnity will be in addition to any liability
which the Company may otherwise have. All fees and expenses which are
reimbursable pursuant to this Section 5 shall be reimbursed as they are
incurred.
(b) If any action or proceeding (including any governmental
investigation) shall be brought or asserted against the Seller or any person
controlling the Seller in respect of which indemnity may be sought from the
Company, the Seller or such controlling person shall promptly notify the Company
in writing, and the Company shall assume the defense thereof, including the
employment of counsel satisfactory to the Seller and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve the
Company from any liability which it may have to any indemnified party otherwise
than under this Section 5. The Seller or any persons controlling the Seller
shall have the right to employ separate counsel in any such action or proceeding
and to participate in the defense thereof, but the fees and expenses of such
separate counsel shall be the Seller's expense or the expense of such
controlling person unless (a) the Company has agreed to pay such fees and
expenses or (b) the Company shall have failed to assume the defense of such
action or proceeding and employ counsel satisfactory to the Seller in any such
action or proceeding or (c) the named parties to any such action or proceeding
(including any impleaded parties) include both the Seller or such controlling
person and the Company and the Seller or such controlling person shall have been
advised by counsel to the Seller that there may be a conflict of interest
between the Seller or such controlling person and the Company in the conduct of
the defense of such action (in which
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case, if the Seller or such controlling person notifies the Company in writing
that it elects to employ separate counsel at the expense of the Company, the
Company shall not have the right to assume the defense of such action or
proceeding on behalf of the Seller or such controlling person), it being
understood, however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (unless the members of such firm are not admitted to practice in a
jurisdiction where an action is pending, in which case the Company shall pay the
reasonable fees and expenses of one additional firm of attorneys to act as local
counsel in such jurisdiction, provided the services of such counsel are
substantially limited to that of appearing as attorneys of record). The Company
shall not be liable for any settlement of any such action or proceeding effected
without its written consent, but if settled with its written consent, or if
there be a final judgment for the plaintiff in any such action or proceeding,
the Company agrees to indemnify and hold harmless the Seller and any such
controlling persons from and against any loss or liability by reason of such
settlement or judgment.
(c) The Seller agrees to indemnify and hold harmless the Company,
including its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Seller, but only with respect to information
furnished in writing by the Seller expressly for use in the Registration
Statement, the related Prospectus, or any amendment or supplement thereto, or
any preliminary prospectus. In case any action or proceeding shall be brought
against the Company or the Company's directors or officers or any such
controlling person, in respect of which indemnity may be sought against the
Seller, the Seller shall have the rights and duties given to the Company, and
the Company or the Company's directors or officers or such controlling person
shall have the rights and duties given to the Seller, by Section 5(b).
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under the paragraphs (a) or (c) hereof in
respect of any losses, claims, damages or liabilities referred to therein (other
than by reason of such indemnified party's failure to comply with the first
sentence of Section 5(b)), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the Seller on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Seller on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Seller and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include, subject to the
limitations set
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forth in Section 5(b), any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim.
(e) The Company and the Seller agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 5(d). Notwithstanding the
provisions of this Section 5, the Seller shall not be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Shares owned by the Seller were offered to the public exceeds the amount of any
damages which the Seller has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 5 shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of the Seller, by or on behalf of any
person controlling the Seller or by or on behalf of the Company or (b) any
termination of this Agreement.
6. Notices. All notices, requests, demands, waivers and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed, certified or registered mail with
postage prepaid, or sent by telex, telegram or telecopier, as follows:
(a) if to the Company:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to TD (NY):
Toronto Dominion (New York), Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx, Esq.
Facsimile: (000) 000-0000
or to such other person (including any Seller other than TD(NY)) or address as
any party shall specify by notice in writing to the other party. All notices
and other communications given to a party in accordance with the provisions of
this Agreement shall be deemed to have been given (i)
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three Business Days after the same are sent by certified or registered mail,
postage prepaid, return receipt requested, (ii) when delivered by hand or
transmitted by telecopy (answer back received) or (iii) one Business Day after
the same are sent by a reliable overnight courier service, with acknowledgment
of receipt requested. Notwithstanding the preceding sentence, notice of change
of address shall be effective only upon actual receipt thereof.
7. Amendment. Any provision of this Agreement may be amended or modified
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in whole or in part at any time by an agreement in writing among the Company and
the Seller. No consent, waiver or similar act shall be effective unless in
writing and signed by the party sought to be bound.
8. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by and interpreted in
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accordance with the internal laws of the State of New York, without giving
effect to principles of conflicts of laws.
10. Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon (i) the Company and TD(NY) and their respective successors,
(ii) any assignee or transferee of rights and obligations of TD (NY) pursuant to
the Facility that acquires Registrable Shares and (iii) any assignee or
transferee of rights and obligations of TD(NY) pursuant to the Master Agreement
that acquires Registrable Shares. A permitted assignee or transferee of TD(NY),
and any successor, assignee, or transferee of any such permitted assignee or
transferee, shall be deemed a party to, and held subject to, all of the terms of
this Agreement. Except as set forth in this Section 10, neither the Company nor
any other party to this Agreement may assign any of its rights, or delegate any
of its duties, under this Agreement.
11. Legend.
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(a) The Seller agrees that substantially the following legend shall be
placed on the certificates representing any Settlement Shares and any Facility
Shares acquired by the Seller from TCI or an affiliate (as that term is defined
in Rule 144(a)(3) under the Securities Act) of TCI:
"NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR (B) IF THE COMPANY HAS BEEN FURNISHED WITH AN OPINION
OF COUNSEL FOR THE HOLDER, WHICH OPINION AND COUNSEL SHALL BE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH TRANSFER,
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SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT."
(b) The parties agree that the certificates representing Facility Shares
acquired by the Seller from a person other than TCI or an "affiliate" of TCI
shall not bear the legend set forth in Section 11(a). The Seller agrees,
however, that any Facility Shares sold by the Seller in connection with a "Cash
Settlement" or a "Net Share Settlement" under the Master Agreement shall be sold
pursuant to the Registration Statement and in a manner described in Exhibit A
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TELE-COMMUNICATIONS, INC.
By:
--------------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.
By:
--------------------------------
Name:
Title:
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EXHIBIT A
Any sales of Registrable Shares by the Seller may be effected from
time to time in one or more of the following transactions: (a) through brokers,
acting as agent in transactions (which may involve block transactions), in
special offerings, in the over-the-counter market, or otherwise, at market
prices obtainable at the time of sale, at prices related to such prevailing
market prices, at negotiated prices or at fixed prices; (b) to underwriters who
will acquire the Registrable Shares for their own account and resell them in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale (any public
offering price and any discount or concessions allowed or reallowed or paid to
dealers may be changed from time to time); (c) directly or through brokers or
agents in private sales at negotiated prices; (d) to lenders pledged as
collateral to secure loans, credit or other financing arrangements and any
subsequent foreclosure, if any, thereunder; (e) through short sales, option
exercises or other derivative transactions; or (f) by any other legally
available means. Also, offers to purchase Registrable Shares may be solicited
by agents designated by the Seller from time to time. Underwriters or other
agents participating in an offering made pursuant to the Registration Statement
and the related Prospectus (as amended or supplemented from time to time) may
receive underwriting discounts or commissions under the Securities Act and
discounts or concessions may be allowed or reallowed or paid to dealers, and
brokers or agents participating in such transactions may receive brokerage or
agent's commissions or fees.
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